RAJIV D. DAVE, MUMBAI V. ITO WD 21(1)(4), MUMBAI

ITA 155/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 3952 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 08-01-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: OTHERS ITA NO
• Assessee Lawyers: MATHURIA
• Keywords: Capital asset; Share purchase agreement; Cost of acquisition; Reasonable cause; Tangible material
• Section: 143(3); 2(14); 133(6); 148; 28; 139

Judgement Text

D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE S/SHRI AMIT SHUKLA (JUDICIAL MEMBER) & RAMIT KOCHAR (ACCOUNTANT MEMBER) ./ I.T.A. NO. 1038 /MUM/2013 ( / ASSESSMENT YEAR : 2008-09) DR. DEVENDRA H. DAVE UDGITH, 35 VALLABHNAGAR SOCIETY N.S. ROAD NO. 3 JVPD SCHEME VILE PARE (WEST) MUMBAI-400 056. PAN NO.AABPD5432C V. ITO WARD 11(2)(2) 443, AAYAKAR BHAVAN 4 TH FLOOR, M.K. ROAD NEW MARINE LINES MUMBAI-400 020. (APPELLANT) (RESPONDENT) I.T.A. NO. 155/MUM/2015 (ASSESSMENT YEAR 2008-09) SHRI RAJIV D. DAVE UDGITH, 35 VALLABHNAGAR SOCIETY N.S. ROAD NO. 3 JVPD SCHEME VILE PARE (WEST) MUMBAI-400 056. PAN NO.AAFPD3451K VS. ITO WARD 21(1)(4) C-10, 6 TH FLOOR BANDRA KURLA COMPLEX BANDRA (EAST) MUMBAI-400 051. ( APPELLANT ) ( RESPONDENT ) I.T.A. NO. 156/MUM/2015 (ASSESSMENT YEAR 2008-09) MS. ANSUYA H. DAVE UDGITH, 35 VALLABHNAGAR SOCIETY N.S. ROAD NO. 3 JVPD SCHEME VILE PARE WEST MUMBAI-400 056. PAN NO.AHFPD1213Q VS. ITO WARD 21(1)(4) C-10, 6 TH FLOOR BANDRA KURLA COMPLEX BANDRA (EAST) MUMBAI-400 051. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI M.S. MATHURIA DEPARTMENT BY SHRI B.S. BIST,SR.DR DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 2 DATE OF HEARING 04.02.2016 DATE OF PRONOUNCEMENT 02.05.2016 O R D E R PER RAMIT KOCHAR, ACCOUNTANT M EMBER:- ALL THE THREE APPEALS ARE FILED BY DIFFERENT ASSES SEES AGAINST THE SEPARATE ORDERS PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FOR THE ASSESSMENT YEAR 2008-09. 2. SINCE THE ISSUES IN ALL THE THREE APPEALS ARE ID ENTICAL, FOR THE SAKE OF CONVENIENCE, THEY WERE HEARD TOGETHER AND WE DECIDE THEM BY THIS COMBINED ORDER. 3. FIRST WE SHALL TAKE UP APPEAL IN ITA NO 1038/MUM /2013 IN THE CASE OF DR. DEVENDRA H.DAVE WHICH APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDERS DATED 10.12.2012 OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)- 3, MUMBAI FOR THE ASSESSMENT YEAR 2008-09(HEREINAFT ER CALLED THE CIT(A)), THE APPELLATE PROCEEDINGS BEFORE THE CIT(A) ARISING FRO M THE ASSESSMENT ORDER DATED 31-12-2010 PASSED BY THE ASSESSING OFFICER(HE REINAFTER CALLED THE AO) U/S 143(3) OF THE INCOME TAX ACT,1961(HEREINAFTER C ALLED THE ACT). 4. THE GROUNDS RAISED BY THE ASSESSEE IN ITA NO. 10 38/MUM/2013 IN THE MEMO OF APPEAL FILED WITH THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI (HEREINAFTER CALLED THE TRIBUNAL) READS AS UNDER :- 1) NO VALID AND LEGAL NOTICE WAS SERVED ON AOP/BOI/CO- OWNER. 2) IMPUGNED ASSESSMENT ORDER IS PASSED WITHOUT LEGA L AND PROPER JURISDICTION. 3) ON THE FACTS AND IN LAW, LEARNED CIT(A) HAS ERRE D IN SUSTENANCE OF ASSUMED LONG TERM CAPITAL GAINS OF RS. 1,00,26,76 3/- MADE BY THE AO ON SUBSTANTIVE BASIS IN THE HANDS OF THE APPELLANT WITHOUT TAKING COGNIZANCE OF VARIOUS DOCUMENTS/ STA TEMENTS/ DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 3 SUBMISSIONS OF THE APPELLANT FILED BEFORE THE AO AN D BEFORE THE LEARNED CIT(A). 4) ON THE FACTS AND IN LAW, LEARNED CIT(A) HAS ERRE D IN SUSTENANCE OF ASSUMED LONG TERM CAPITAL GAINS OF RS. 1,00,26,763/- MADE BY THE AO ON PROTECTIVE BASIS IN THE HANDS OF THE APPELLANT WITHOUT TAKING COGNIZANCE OF VARIOUS DOCUMENTS/ STA TEMENTS/ SUBMISSIONS OF THE APPELLANT FILED BEFORE THE AO AN D BEFORE THE SAID CIT(A). 5) YOU ARE KINDLY REQUESTED TO DELETE IMPUGNED AGGR EGATE ADDITIONS OF ASSUMED LONG TERM CAPITAL GAINS OF RS. 200,53,526/- AS PER THE PROVISIONS OF THE ACT AND OBLIGE. 5. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A DOCTOR BY PROFESSION. THE ASSESSEE DECLARED 'INCOME FROM PROF ESSION AND INCOME FROM OTHER SOURCES IN THE RETURN OF INCOME FILED WITH T HE REVENUE. 6.DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S. 143(3) READ WITH SECTION 143(2) OF THE ACT, IT WAS OBSERVED BY THE AO THAT T HE ASSESSEE HAS DISCLOSED LOAN ON THE LIABILITY SIDE IN RESPECT OF GOLD COIN BUILDERS(HEREINAFTER CALLED THE GCB) AT RS. 1,65, 00,000/- IN THE BALANCE SHEET ANNEXED TO THE RETURN OF INCOME FILED BY THE ASSESSEE WITH THE REVENUE. THE ASSESSEE WAS ASKED TO EXPLAIN THE SAME BY THE AO. IN RESPONSE THERETO , THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE HAS RECEIVED RS.1,65,00,000/- FROM THE GCB AND THE SAME IS SHOWN AS INTEREST FREE LOAN FROM THE SAID BUILDER. THE SAID BUILDER G CB HAD GIVEN THE SAID DEPOSIT OF RS.1.65 CRORES TO THE ASSESSEE AS THE A SSESSEE HAD GIVEN THE REDEVELOPMENT WORK OF THEIR SELF-OCCUPIED PROPERTY BEING BUNGALOW NAMED 'UDGITH' AT VILE PARLE , MUMBAI. THE ASSESSEE SUBMI TTED THAT THE DISPUTE AROSE BETWEEN THE ASSESSEE AND THE SAID BUILDER GCB AND THE MATTER IS STILL PENDING WITH THE COURT OF LAW AND SAID AMOUN T IS KEPT AS IT IS AND IT SHALL BE REPAID OR OTHERWISE AS PER THE DECISION OF THE HONBLE SUPREME COURT. THE ASSESSEE SUBMITTED THAT NO INTEREST IS P AID OR PROVIDED WITH DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 4 RESPECT OF THE SAID DEPOSIT. THE ASSESSEE HAS FURNI SHED UNSIGNED COPY OF THE MEMORANDUM OF UNDERSTANDING(MOU) DATED DECEMBER , 2004. SINCE THE ASSESSEE HAS NOT FURNISHED SIGNED COPY OF THE MOU, NOTICE DATED 10.12.2010 U/S 133(6) OF THE ACT WAS ISSUED B Y THE AO TO THE GCB REQUESTING TO FURNISH THE DETAILS OF PAYMENT MADE TO THE ASSESSEE AND THE DETAILS CONNECTED WITH THE REDEVELOPMENT OF BUNGALO W UDGITH. THE SAID GCB VIDE REPLY DATED 16.12.2010 IN RESPONS E TO NOTICE U/S 133(6) OF THE ACT, CONFIRMED TO THE AO THAT RS. 1.65 CRORES W AS PAID TO THE ASSESSEE BY ACCOUNT PAYEE CHEQUE AND IT WAS THE COST OF THE PRO JECT BY WAY OF COMPENSATION TO OWNERS IN CONNECTION WITH CONSTRUCT ION OF SEVEN STOREY BUILDING AT PLOT NO.35, VALLABH NAGAR CO-OP HOUSING SOCIETY LTD., NORTH SOUTH ROAD NO. 3, J.V.P.D SCHEME, VILE PARLE( W), MUMBAI-400 56. THE SAID BUILDER GCB SUBMITTED TO THE AO THAT I T IS ENTITLED TO 4 TH AND 5 TH FLOORS IN THE SAID BUILDING AS PER THE AGREEMENT DA TED 29 TH DECEMBER 2004 WITH THE ASSESSEE AND HIS FAMILY MEMBERS. THE SAID BUILDER GCB SUBMITTED TO THE AO IN REPLY TO NOTICE U/S 133(6) O F THE ACT, THAT THE POSSESSION OF THE SAID PROPERTY WAS HANDED OVER TO GCB BY THE ASSESSEE VIDE LETTER DATED 16 TH OCTOBER 2005, WITH EFFECT FROM 16 TH OCTOBER 2005 FOR THE PURPOSE OF DEMOLITION OF THE BUNGALOW STANDING ON THE SAID PLOT OF LAND AND FOR CONSTRUCTION OF SEVEN STORIED BUILDING. T HE COPY OF THE MOU DATED 29-12-2004 ENTERED INTO BY THE BUILDER GCB AND THE ASSESSEE AND HIS FAMILY MEMBERS, WAS SUBMITTED BY THE BUILDER GCB TO AO AND IT WAS CONFIRMED THAT THE 4 TH AND 5 TH FLOORS ARE PHYSICALLY INDEPENDENT, JOINED BY COMMO N STAIRCASE TO ALL SEVEN FLOORS AND NOT INTERCONNECTED FROM WIT HIN. THE AO ON PERUSAL OF THE MOU DATED 29-12-2004 OBSER VED THAT THE SAID BUNGALOW WAS LEASED TO DAVE FAMILY ON LONG TERM LEA SE AND AS PER THE RECORDS OF RIGHTS, THE OWNERSHIP OF THE PROPERTY IS IN THE NAME OF ONE SHRI HARIVALLABH DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 5 PARMANAND DAVE & DR. DEVENDRA HARIVALLABH DAVE. BUT IT IS CONTENDED BY DAVE FAMILY THAT NOW (AFTER THE DEATH OF SHRI HARIV ALLABH PARMANAND DAVE) , THE PROPERTY BELONGS TO ALL THE FOUR SIGNATORIES TO THE MOU DATED 29-12- 2004 NAMELY SHRI DEVENDRA H. DAVE-50%, SHRI RAJIV D EVENDRA DAVE-16 1/3%, SHRI ALOK DEVENDRA DAVE- 16 1/3% AND MS. ANUS UYA H. DAVE- 16 1/3% RESPECTIVELY EVER SINCE THE DEMISE OF SHRI HAR IVALLABH PARMANAND DAVE. THE AO OBSERVED THAT THE ASSESSEE AS PER THE MOU AL ONG WITH THE OTHER CO- OWNERS WILL THROUGH THEIR AGENTS OR CONTRACTOR WILL CAUSE TO DEMOLISH THE EXISTING BUNGALOW AND REMOVE THE DEBRIS. THE ASSESS EE ALONG WITH OTHER CO- OWNERS WILL BE ENTITLE TO PROCEEDS FROM SALE OF DEB RIS FROM THE DEMOLITION OF THE SAID BUNGALOW AND THE EXPENSES ON DEMOLITION WI LL BE TO THE ACCOUNT OF ASSESSEE AND THE OTHER CO-OWNERS. THE MOU IS FOR DE MOLITION AND RECONSTRUCTION OF BUNGALOW NO. 35, UDGITH, M S ROAD NO. VI , VALLABH NAGAR SOCIETY, MUMBAI-400 056. THE SAID BUILDERS NAMELY GCB HAVE CONSTRUCTED AND REDEVELOPED THE SAID BUNGALOW AFTER ITS DEMOLITION BY CONSTRUCTION OF SEVEN FLOORS, OUT OF WHICH 4 TH & 5 TH FLOORS ARE TO BE RETAINED BY THE SAID BUILDERS. THE ASSESSEE ALONG-WITH THE OTHE R CO-OWNERS WERE ENTITLED TO FLOORS 1,2,3,6 &7 IN THE RECONSTRUCTED BUILDING & T O THE FUTURE FSI , IF ANY. IN ADDITION TO THE ABOVE, THE ASSESSEE AND THE OTHER C O-OWNERS WERE COMPENSATED IN MONETARY TERM WITH SUM OF RS.1,65,00,000/-. THE ENTIRE COST OF CONSTRUCTION HAS TO BE BORNE BY THE BUILDERS EXCEPT TO THE EXCLUSION OF THE COST TO BE INCURRED BY ASSESSEE AND THE OTHER CO-OWNERS STATED AT PAGE 9 SCHEDULE B OF MOU. THE AO OBSERVED THAT THE POSSESSION OF THE PROPERTY WAS HANDED OVER FOR DEMOLITION AND RECONSTRUCTION BY THE ASSES SEE & CO-OWNERS TO THE BUILDERS WITH EFFECT FROM 16.10.2005 . THE AO FORWARDED THE REPLY OF THE GCB DATED 16.12.2 010 TO THE ASSESSEE AND THE ASSESSEE WAS SHOW-CAUSED AS TO WHY THE AMOUNT O F RS. 1.65 CRORES RECEIVED BY THE ASSESSEE FROM THE GCB SHOULD NOT BE TREATED AS ASSESSEES DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 6 INCOME FROM CAPITAL GAIN FOR THE ASSESSMENT YEAR 20 08- 09. THE ASSESSEE WAS ISSUED ANOTHER LETTER DATED 24.12.2010 BY THE AO REQUESTING AS TO WHY THE SALE CONSIDERATION RECEIVED OF RS.1.65 C RORES ALONGWITH COST OF CONSTRUCTION OF 5 FLOORS PERTAINING TO, SHOULD NOT BE TREATED AS CAPITAL GAINS ON SALE OF 2/7 TH OF THE LAND. IN REPLY TO THE SHOW-CAUSE NOTICES DATED 16.12.201 0 AND 24.12.2010, THE ASSESSEE SUBMITTED THE EXPLANATION VIDE LETTER DATE D 28.12.2010 AND AFTER CONSIDERING THE SAME , THE AO HELD THAT THE ASSESSE ES CONTENTION THAT THERE WAS NO TRANSFER OF LAND AS PROVIDED IN SEC 2(47) OF THE ACT IS NOT ACCEPTABLE AS THE ASSESSEE HAS ALLOWED THE PEACEFUL POSSESSION OF THE LAND IN QUESTION TO THE GCB WITH THE CONDITION THAT THEY HAVE TO CON STRUCT 7 STOREY BUILDING AND TO HAND OVER 5 FLOOR TO ASSESSEE AS FREE OF COS T. AS PER THE MOU, THE ASSESSEE HAS RECEIVED THE FIXED AMOUNT OF RS.1,65,0 0,000/- ON VARIOUS INSTALLMENT AND THE LAST SUCH INSTALLMENT WAS RECEI VED BY THE ASSESSEE ON 2/4/2007 AND HENCE THE AO HELD THAT THERE IS A TRA NSFER OF CAPITAL ASSET AS ENVISAGED IN SEC 2(14) OF THE ACT. SINCE, THE ASSES SEE HAS PART PERFORMED THE CONTRACT AS PER THE PROVISIONS OF SEC 53(2)(SIC. TO BE READ AS SEC. 53A) OF THE TRANSFER OF PROPERTY ACT,1882 EVEN THOUGH THE AGREE MENT IN QUESTION IS NOT REGISTERED OR EXECUTED AS THE POSSESSION OF THE LAN D WAS GIVEN TO THE BUILDER AND THE ASSESSEE HAS RECEIVED SALE CONSIDER ATION INCLUDING THE OUTER CONSTRUCTION OF THE 5 STOREY, THE TRANSFER IS COMPLETE AND ASSESSABLE TO TAX IN THE ASSESSMENT YEAR 2008-09. THE SAID CONSIDERATION OF RS.1,65,00,000/- TOGETHER WITH THE COST OF CONSTRUCTION OF 5 FLOORS TO BE RETAINED BY THE ASSE SSEE CONSTRUCTED FREE OF COST BY THE GCB , IS TO BE THE SHARE OF THE ASSESSEE AND THE LEGAL HEIRS OF MR. HARIVALLABH PARMANAND DAVE. THE ASSESSEE BEING ENTI TLE TO 50% OF SHARE. THE ASSESSEE HAS NOT FURNISHED ANY DETAILS QUANTIFYING COST OF CONSTRUCTION OF THE FIVE FLOORS RETAINED BY THE ASSESSEE. THE TOTAL CON STRUCTED AREA OF THE PLOT IS DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 7 1702 SQ. MTRS. WHICH IS EQUAL TO 5584 SQUARE FEET , OF THIS, THE ASSESSEE HAS RETAINED 5 FLOORS ALONG WITH THE LEGAL HEIRS OF MR. HARIVALLABH PARMANAND DAVE WHICH COMES TO 3989 SQUARE FEET. IN THE ABSENC E OF COST OF CONSTRUCTION BEEN QUANTIFIED BY THE ASSESSEE AND AFTER GOING THR OUGH THE SCHEDULE A TO MOU DATED 29-12-2004 , THE AO ESTIMATED THE COST OF CONSTRUCTION AT RS. 1100/- PER SQUARE FEET, WHICH COMES TO RS. 43,87,9 00/-. THUS, THE TOTAL SALE CONSIDERATION WAS WORKED OUT BY THE AO AT RS.2,08,8 7,900/- (BEING AGGREGATE OF LUMP SUM SALE CONSIDERATION OF RS.1,65,00,000/- RECEIVED FROM THE BUILDERS AND COST OF CONSTRUCTION OF 5 FLOOR BEING RS.43,87, 900/- ). THE ASSESSEE SUBMITTED VIDE LETTER DATED 24.12.2010 THAT THE COST OF ACQUISITION OF THE ENTIRE BUILDING IS RS.5,30,000/- . THE ASSESSEE SUBMITTED THAT THE COST OF FURTHER AMOUNT SPENT AFTER 1.4.200 6 TO 31.3.2010 AS COST OF IMPROVEMENT AT RS. 1,18,38,947/- TOWARDS COST RELAT ING TO THE 5 FLOOR RETAINED BY THE ASSESSEE, WHICH WAS REJECTED BY THE AO AS IT CANNOT BE SAID THAT RS.1,18,38,947/- CONSTITUTE COST OF IMPROVEMENT . T HEREFORE, THE COST OF IMPROVEMENT WAS TAKEN AS NIL. HENCE, THE LONG TERM CAPITAL GAIN CHARGEABLE TO TAX WORKS OUT TO RS. 2,00,53,526/- ( SALE CONSIDERA TION BEING RS.2,08,87,900 LESS THE INDEXED COST OF ACQUISITION BEING RS. 8,3 4,374/- (RS.1,51,429/- BEING COST OF ACQUISITION AS ON 01-04-1981 AND COST INFLA TION INDEX BEING 551 IN THE FINANCIAL YEAR 2007-08). AS PER THE AO , THE ASSESSEE DID NOT SUBMIT THE DOC UMENTARY EVIDENCE TO SHOW WHO ARE THE LEGAL HEIRS OF SH. HARIVALLABH PARMANAN D DAVE. THEREFORE 50% OF THE LONG TERM CAPITAL GAIN WAS ASSESSED BY THE AO I N THE HANDS OF THE ASSESSEE ON SUBSTANTIVE BASIS AND THE BALANCE 50% IS ASSESSE D IN THE ASSESSEES CASE ON PROTECTIVE BASIS WITH THE DIRECTION THAT THE SAM E IS ASSESSABLE ON SUBSTANTIVE BASIS IN THE HANDS OF THE LEGAL HEIRS O F SHRI HARIVALABH PARMANAND DAVE, VIDE ASSESSMENT ORDERS DATED 31.12.2010 PASSE D BY THE AO U/S. 143(3) OF THE ACT. DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 8 7. AGGRIEVED BY THE ASSESSMENT ORDERS DATED 31.12.2 010 PASSED BY THE AO U/S. 143(3) OF THE ACT, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). 8.BEFORE THE CIT(A), THE ASSESSEE CONTENDED THAT FO UR FAMILY MEMBERS TERMED AS CO-OWNERS OF IMMOVABLE PROPERTY HAVE ENTERED INT O MOU DATED 29.12.2004 FOR DEVELOPMENT OF THEIR PROPERTY BY THE GCB, BUT DUE TO CERTAIN BREACH OF CONTRACT, THE MOU WAS TERMINATED, HENCE INCOMPLETE WORK WAS CARRIED OUT BY THE ASSOCIATION OF PERSON(AOP) WHICH IS NOT COMPLET ED TILL DATE. THE ASSESSEE SUBMITTED THAT THE ADDITIONS BEING MADE BY THE AO I N THE HANDS OF THE ASSESSEE IS BAD IN LAW , AS THE SAME SHOULD BE ASSE SSED IN THE HANDS OF THE AOP AS THE ASSESSEE BEING THE CO-OWNER OF THE PROPE RTY AND IS THUS AOP. THE ASSESSEE CONTENDED THAT THE AO HAS NO JURISDICTION OVER THE AOP AND HENCE THE ASSESSMENT MADE IS WITHOUT JURISDICTION AND SHO ULD BE QUASHED. THE AO IN HIS REMAND REPORT DATED 11/06/2012 SUBMIT TED THAT THERE WAS NO SUCH CLAIM/SUBMISSION MADE BY THE ASSESSEE DURING T HE ASSESSMENT PROCEEDINGS BEFORE THE AO REGARDING EXISTENCE OF AO P AND FURTHER NO DOCUMENTARY EVIDENCE WHATSOEVER NATURE WAS ALSO FIL ED TO SUBSTANTIATE THE STATUS OF THE ASSESSEE AS AOP AND MERELY BECAUSE CE RTAIN PERSON HAVE INHERITED PROPERTY AFTER DEATH OF A PERSON THAT DOE S NOT CONSTITUTE AN AOP. THE CIT(A) REJECTED THE CONTENTIONS OF THE ASSESSEE . THE CIT(A) OBSERVED THAT THE MOU HAS BEEN ENTERED IN TO WITH THE GCB BY THE ASSESSEE AND HIS FAMILY MEMBERS AS ONE OF THE CO-OWNERS. THE PROPERTY WAS I NHERITED BY THE FAMILY MEMBERS OF THE ASSESSEE AND THE OWNERSHIP IN PROPER TY WAS VESTED BECAUSE OF INHERITANCE AND NOT BECAUSE OF THE FORMATION OF ANY AOP AS A LEGAL BODY. THE INHERITANCE OF THE PROPERTY DOES NOT LEAD TO THE FO RMATION OF AOP BUT GIVE DIFFERENT SHARES HELD BY THE LEGAL HEIRS OF THE DEC EASED. THE CIT(A) RELIED UPON SECTION 26 OF THE ACT AND CAME TO THE CONCLUSION TH AT INCOME IS TO BE ASSESSED IN THE HANDS OF THE CO-OWNERS. AS NOTHING IS ON AGR EEMENT ABOUT THE EXISTENCE DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 9 OF AOP AND NO SUCH CLAIM WAS MADE IN THE ASSESSMENT PROCEEDINGS BY THE ASSESSEE AND RETURN OF INCOME WAS ALSO FILED BY THE ASSESSEE AS IN AN INDIVIDUAL CAPACITY. THE ASSESSEE ITSELF HAS SHOWN A LIABILITY PAYABLE TO GCB OF RS.1.65 CRORES AS OF 31-3-2008 IN ITS BALANCE SHEET IN INDIVIDUAL CAPACITY AND NOT AS LIABILITY OF AOP. THE SHARES OF THE RESPECTI VE CO-OWNERS ARE DEFINITE AND ASCERTAINABLE . THE ASSESSEE HIMSELF HAS STATED VID E LETTER DATED 24.12.2010 ADDRESSED TO THE AO THAT THE SHARE IN PROPERTY AS M S. ANSUYA HARIVALLABH DAVE (SISTER) AT 16 1/3 RD , SH. RAJIV DEVENDRA DAVE 16 1/3 RD , SH.ALOK DEVENDRA DAVE 16 1/3 RD AND 50% SHARE OF THE ASSESSEE. THUS THE CIT(A) HEL D THAT THE INCOME THERE-OF COULD NOT BE ASSESSED AS AOP IN RES PECT OF THE SAID PROPERTY , VIDE ORDERS DATED 10.12.2012. WITH RESPECT TO THE CLAIM OF THE ASSESSEE ON MERIT THE ASSESSEE REITERATED THE SUBMISSIONS AS WERE MADE BEFORE THE AUTHORITIES BEL OW. DURING THE COURSE OF PROCEEDINGS BEFORE THE CIT(A) , IT WAS CLAIMED BY T HE ASSESSEE THAT SUBMISSIONS MADE BY THE ASSESSEE BEFORE THE AO WAS MADE AS PART OF ASSESSMENT ORDER AS ANNEXURE-A BUT THE AO DID NOT M AKE ANY SPECIFIC COMMENTS THEREON, HENCE THE AO WAS ASKED TO MAKE HE R COMMENTS ON THE SAME VIDE LETTER DATED 16.9.2011 BY THE CIT(A). THE AO IN ITS REMAND REPORT NOTED THE CLAIM OF THE ASSESSEE THAT THE GCB WERE ALLOWED TO ENTER THE PREMISES AS CONTRACTOR/AGENT/T RUSTEES ONLY FOR THE PURPOSE OF DEMOLITION OF BUNGALOW AND CONSTRUCTION OF KHOKA OF 7 STORIED THEREON. THE AO REFERRED TO REPLY DATED 16.12.2010 OF GCB WHEREIN THEY HAVE CLEARLY STATED THAT FOR THE PURPOSES OF DEMOLITION OF BUNGALOW EXTENDING ON THE SAID PLOT OF LAND AND CONSTRUCTION OF SEVEN STORIED BUILDING, THE PROPERTY WAS HANDED OVER TO THEM W.E.F. 16.10.2005 BY DAVES LET TER DATED 16.10.2005. THUS , THE ENTIRE PROPERTY WAS IN THE POSSESSION OF GCB TILL THE TERMINATION OF THE MOU AND THE GCB HAVE APPLIED TO THE STATUTORY A UTHORITIES FOR APPROVAL OF THE PLAN AND OTHER PERMISSIONS AND THEREFORE IT IS CLEAR THAT THE PROPERTY FOR ALL DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 10 PRACTICAL PURPOSES WAS WITH M/S.GCB. WITH RESPECT T O THE CLAIM OF THE ASSESSEE THAT THE TRANSFER IS COMPLETE ONLY WHEN TH E CONVEYANCE DEED IS EXECUTED AS PER DECISION IN THE CASE OF ALLAPATTI V ENKATRAMIAH V. CIT (1965) 57 ITR 185. THE AO SUBMITTED THAT THE ASSESSEE HAS RE CEIVED COMPENSATION AS MENTIONED IN THE MOU AND THE DEVELOPER HAS TAKEN TH E POSSESSION OF THE PROPERTY FROM THE OWNERS AS PER SECTION 53A OF THE TRANSFER OF THE PROPERTY ACT ,1882 . THE TRANSFER IS COMPLETE EVEN THOUGH TH E CONVEYANCE DEED IS NOT EXECUTED BY RELYING UPON PROVISIONS OF SECTION 2(47 )(V) OF THE ACT AS IT INVOLVES THE POSSESSION OF IMMOVABLE PROPERTY TO BE TAKEN IN PART PERFORMANCE OF THE CONTRACT. THE ARGUMENTS OF THE ASSESSEE WERE REJEC TED BY THE AO IN REMAND REPORT. THE AO ALSO NOTED THAT THE MOU DID NOT STAT E THAT A DEPOSIT OF RS.1.65 CRORES IS TO BE MADE BY THE GCB IN RESPONSE TO CONT ENTIONS OF THE ASSESSEE THAT THE AMOUNT WAS RECEIVED AS DEPOSIT AND NOT AS SALE CONSIDERATION. THE AO ALSO SUBMITTED THAT THE GCB HAS DEBITED IN THEIR BO OKS OF ACCOUNT AN AMOUNT OF RS. 1.65 CRORES AS A COST OF PROJECT AND NOT AS A LAND/ADVANCE/DEPOSIT AND HENCE IT IS NOT AN EARNEST MONEY. THE ASSESSEE HAS EXTINGUISHED HIS RIGHT OF 2/7 PORTION OF THE PROPERTY WITH REGARD TO 2 FLOORS WHICH ARE ALLOTTED TO THE BUILDER. THEREFORE , THERE IS TRANSFER AND CONTENT ION OF THE ASSESSEE THAT OCCUPATION CERTIFICATE IS NOT RECEIVED TILL DATE AN D MATTER BEING SUB-JUDICE IS NOT ACCEPTABLE AS THERE IS TRANSFER U/S. 2(47) OF T HE ACT, VIDE REMAND REPORT SUBMITTED BY THE AO TO THE CIT(A). AS THE COST OF ACQUISITION WAS NOT SPECIFIED IN REM AND REPORT, THE CIT(A) ASKED THE AO TO SUBMIT DETAILS AND COMMENTS REGARDING COS T OF ACQUISITION OF THE PROPERTY FOR THE PURPOSES OF COMPUTATION OF CAPITAL GAINS. THE AO SUBMITTED SECOND REMAND REPORT DATED 11-06-2 012 WHEREIN IT WAS NOTED BY THE AO THAT THE BUILDER/DEVELOPER GCB HAS CONFIRMED THAT THEY APPLIED FOR OCCUPATION/COMPLETION CERTIFICATE FROM THE BMC AND ALSO BCC, STABILITY CERTIFICATE , SITE SUPERVISION COMPLETION CERTIFICATE, RCC PLAN , AND DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 11 BUILDING PLAN WITH BMC FOR GETTING A OCCUPATION CER TIFICATE . THE DETAILS WERE COLLECTED SUCH AS COPY OF RETURNS OF INCOME, PROFIT AND LOSS ACCOUNT , BALANCE SHEET, AUDIT REPORT WHEREIN THE GCB HAS MADE ENTRIE S IN THEIR BOOKS OF ACCOUNTS AS COST OF PROJECT, WHICH SUBSTANTIATED TH AT THE ASSESSEE HAD ACTUALLY HANDED OVER THE POSSESSION OF THE PROPERTY TO THE D EVELOPER . THE AO FURTHER COLLECTED TDR AGREEMENT DATED 31.01.2005 WITH REHAB HOUSING PRIVATE LIMITED FOR ACQUIRING 850 METERS PURCHASED BY GCB I N THE NAME OF DR D.H.DAVE AND FINAL AGREEMENT FOR TRANSFER/UTILIZATI ON OF FSI BETWEEN M/S. REHAB HOUSING P. LTD. AND THE ASSESSEE I.E. DR. D.H . DAVE. SIMILARLY, LETTER WRITTEN TO BMC BY THE ASSESSEE FOR ENGAGEMENT OF C ONSULTING ARCHITECT AND STRUCTURAL ENGINEER PHOTOGRAPHS OF FRONT AND SIDE E LEVATION AND BACKSIDE ELEVATION OF THE NEW BUILDING CONSTRUCTED BY THE GC B WERE COLLECTED THE AGREEMENTS FOR TRANSFER/UTILIZATION OF FSI(TDR) BET WEEN REHAB HOSING PRIVATE LIMITED AND ASSESSEE AND ALL THESE DOCUMENTS CONTAI NS THE SIGNATURE OF THE ASSESSEE AND NO SIGNATURE OF OTHER CO-OWNERS WERE S EEN WHICH ALSO PROVED THAT IT IS NOT THE AOP AND THE ASSESSEE HAS ALSO HANDED OVER THE PEACEFUL POSSESSION OF THE LAND IN QUESTION TO THE GCB TO CO NSTRUCT SEVEN STORIED BUILDING AND HANDOVER FIVE FLOORS TO THE ASSESSEE A S FREE OF COST AS PER THE MOU, WHICH CLEARLY ESTABLISH THE FACT THAT THERE IS TRANSFER OF ASSET AS ENVISAGED IN SECTION 2(14) R.W.S. 2(47) OF THE INCO ME TAX ACT AND SINCE THE ASSESSEE HAS PERFORMED THE CONTRACT AS PER THE PROV ISIONS OF SECTION 53(2)(SIC. TO BE READ AS SECTION 53A) OF THE TRANSFER OF PROPE RTY ACT,1882 EVEN THOUGH THE AGREEMENT IS NOT REGISTERED BUT THE POSSESSION OF THE LAND IN QUESTION WAS GIVEN TO THE BUILDER AND SALE CONSIDERATION HAS BEE N RECEIVED BY THE ASSESSEE INCLUDING THE OUTER CONSTRUCTION OF THE 5 STORIED, WHICH AMOUNTS TO TRANSFER OF PROPERTY AND HENCE AS PER THE AO IN HIS REMAND REPO RT , IT WAS HELD THAT THE INCOME WAS RIGHTLY BROUGHT TO TAX IN THE ASSESSMENT YEAR 2008-09 AS LONG TERM CAPITAL GAINS. IT WAS ALSO SUBMITTED IN THE R EMAND REPORT BY THE AO THAT THE ASSESSEE WAS NOT ABLE TO FURNISH ANY DETAILS QU ANTIFYING THE COST OF CONSTRUCTION OF THE FIVE FLOORS RETAINED BY HIM. TH E ASSESSEE HAS ALSO NOT DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 12 FURNISHED DOCUMENTARY EVIDENCES TO SHOW THAT WHO AR E THE LEGAL HEIRS OF THE ASSESSEE AND THEIR SHARING RATIO. THEREFORE, 50% OF LONG TERM CAPITAL GAIN WAS ASSESSED TO TAX IN THE HANDS OF THE ASSESSEE ON SUB STANTIVE BASIS AND BALANCE 50% IN THE ASSESSEE CASE ON PROTECTIVE BASIS. THE ASSESSEE SUBMITTED THAT THERE IS NO CAPITAL GAI N WHICH ACCRUED TO THE CO- OWNERS AND TILL TODAY THE WHOLE PROPERTY IS UNDER T HE CONTROL OF THE ASSESSEE AND THE OTHER CO-OWNERS ONLY AND SAID M/S.GCB IS NO T PERMITTED AND RESTRAINED TO ENTER THE PREMISES AND/OR TO OCCUPY O R ACQUIRE IMPUGNED FOURTH AND FIFTH FLOORS AND THE CORRESPONDING PARKING SPAC E IN THE SAID BUILDING. SO,THE ASSESSEE SUBMITTED THAT THERE IS NO TRANSFER OF CAPITAL ASSET BY THE ASSESSEE AND THE OTHER CO-OWNERS AND NO QUESTION OF COMPUTING CAPITAL GAIN. THUS, TAXING THE IMPUGNED CAPITAL GAIN IS REDUNDANT AND BAD IN LAW. THE ASSESSEE SUBMITTED THAT AS PER THE ORAL WILL OF SHR I H.P.DAVE , HIS 50% SHARE IN THE PROPERTY DEVOLVED EQUALLY UPON HIS DAUGHTER AND HIS TWO GRANDSONS. THE SAID BUILDER I.E. M/S. GCB HAS GIVEN RS. 1.65 CRORE S AS DEPOSIT ONLY, WHICH CANNOT BE BROUGHT TO TAX AS INCOME OF THE CO-OWNERS , AS THE SAID FIXED SUM IS TO BE UTILISED FOR VARIOUS AMENITIES TO BE PROVIDED ON 1,2,3,6 AND 7 TH FLOORS, THE CONTRACTOR HAS RESTRICTED ITS COST OF PROJECT AND O NLY KHOKA OF THE BUILDING IS CONSTRUCTED BY GCB. THE WHOLE PROPERTY IS IN THE CO NTROL OF THE CO-OWNERS AND SAID GCB IS NOT PERMITTED AND RESTRAINED BY THE HON 'BLE SUPREME COURT TO ENTER THE PREMISES AND/OR TO OCCUPY OR ACQUIRE IMPU GNED FLOORS AND THE CORRESPONDING PARKING SPACE IN THE SAID BUILDING. N O EXCLUSIVE POSSESSION OF THE PROPERTY WAS GIVEN TO GCB, NO POSSESSION IS ALL OWED TO GCB EITHER OF THE PLOT OR STRUCTURE THEREON. THE SAID MOU HAS BEEN TE RMINATED AND MATTER IS SUB-JUDICE. NO OCCUPATION CERTIFICATE IS ISSUED AND THE ASSESSEE AND OTHER CO- OWNERS ARE IN EXCLUSIVE POSSESSION OF THE SAID PLOT OF LAND AND STRUCTURE THEREON AND CONSTRUCTION WORK IS PENDING TO BE CARR IED ON BY THE ASSESSEE AND THE SAID OTHER CO-OWNERS. THE ASSESSEE ALSO SUBMIT TED THAT NO PROTECTIVE ASSESSMENT CAN BE MADE IN THE HANDS OF THE ASSESSEE WITHOUT ANY VALID AND DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 13 LEGAL SUBSTANTIVE ASSESSMENT IN THE CASE OF OTHER C O-OWNERS. THE AO HAS FAILED TO PASS SPEAKING AND REASONED ORDER AND HENCE THE A O CANNOT BE ALLOWED FURTHER OPPORTUNITY TO COVER UP ILLEGAL ACTION OF P ASSING IMPUGNED NONSPEAKING AND WITHOUT REASON ASSESSMENT ORDER. THE CIT(A) CONSIDERED SUBMISSIONS OF THE ASSESSEE A ND REJECTED THE CONTENTIONS OF THE ASSESSEE.THE CIT(A) HELD THAT RE MAND REPORT CALLED FROM THE AO IS FOR THE BENEFIT OF THE ASSESSEE , HENCE THE O BJECTION OF THE ASSESSEE WITH RESPECT TO REFERENCE TO AO FOR REMAND REPORT WAS RE JECTED. IT IS SEEN THAT THE ASSESSEE IS HAVING LAND BEARING CTS NO. 204 ADMEASU RING 852.50 SQ. METER WITH BUNGALOW NAMED UDGITH ON PLOT NO. 35 ON LEAS E OWNERSHIP BASIS AT VALLABH NAGAR CHS, VILE PARLE( WEST), MUMBAI IN THE NAME OF SHRI HARIVALLABH PARMANAND DAVE (FATHER OF THE ASSESSEE) AND SHRI DE VENDRA DAVE (THE ASSESSEE) WITH 50% SHARES OF EACH. ON THE DEATH OF SHRI HARIVALLABH P DAVE ON 11.11.1985, 50% SHARES OF HIS SHARE DEVOLVED UPON M S. ANUSUYA H DAVE (SISTER OF THE ASSESSEE), SHRI RAJIV H DAVE AND SHR I ALOK D. DAVE (WITH 16 1/3 RD SHARE EACH). THE SAID BUNGALOW WAS OWNED BY FOUR CO -OWNERS WITH DEFINITE SHARES IN WHICH THE ASSESSEES SHARE WAS 50% AND OT HER THREE PERSONS HAD 16 1/3 RD EACH. THE CO-OWNERS OF THE BUNGALOW NO. 35 WERE TA KEN ON RECORD BY THE SOCIETY AS INHERITED PROPERTY ON 12.09.1989. THE SA ID PLOT WAS ACQUIRED IN THE NAME OF THE ASSESSEE AND HIS FATHER VIDE CONVEYANCE DEED DATED 21.09.1971. THE SAID PLOT NO. 35 WAS ASSIGNED BY SHRI D.H. DAVE AND HIS FAMILY VIDE MOU DATED 29.12.2004 TO THE GCB FOR CONSTRUCTION OF SE VEN STORIED BUILDING ON WHICH THE GCB IS ENTITLED TO RETAIN FOURTH AND FIFT H FLOORS AS PER THE SAID MOU. THE GCB VIDE LETTER DATED 16.12.2010 SUBMITTED THAT THEY HAVE PAID RS. 1.65 CRORES TO SHRI DEVENDRA H. DAVE I.E. THE ASSESSEE T OWARDS COST OF PROJECT BY WAY OF COMPENSATION TO OWNERS IN CONNECTION WITH TH E CONSTRUCTION OF SEVEN STORIES BUILDING IN WHICH THE GCB WERE ENTITLED TO FOURTH AND FIFTH FLOOR OF THE SAID BUILDING. THE GCB SUBMITTED THAT THE POSSESSIO N OF THE PROPERTY WAS HANDED OVER TO THEM ON 16.10.2005 BY SH D H DAVE I. E. THE ASSESSEE FOR THE DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 14 PURPOSE OF DEMOLITION AND CONSTRUCTION OF SEVEN STO RIED BUILDING. THE ASSESSEE WAS ENTITLED FOR DEBRIS OF DEMOLITION OF BUNGALOW. THE ENTIRE PROPERTY WAS IN THE POSSESSION OF GCB TILL THE TERMINATION OF MOU. IT IS NOTICED THAT THE GCB HAVE APPLIED TO THE STATUTORY AUTHORITIES FOR APPRO VAL OF PLAN AND OTHER PREMISES AND COMPENSATION OF RS. 1.65 CRORES WAS RE CEIVED BY THE ASSESSSEE FROM THE GCB IN LIEU OF HANDING OVER THE POSSESSION OF THE PROPERTY FROM THE OWNER AS PER PROVISIONS OF SECTION 53A OF THE TRANS FER OF PROPERTY ACT, 1882. THEREFORE, THE TRANSFER OF THE PROPERTY IS COMPLETE EVEN THOUGH THE CONVEYANCE DEED IS NOT EXECUTED. AS PER PROVISIONS OF SECTION 2(47)(V) OF THE ACT, TRANSFER IS DEFINED IN RELATION TO TRANSACTION INVOLVING THE PO SSESSION OF IMMOVABLE PROPERTY IS TRANSFER IN PART PERFORMANCE OF THE CON TRACT. THE MONEY WHICH HAS BEEN PAID BY GCB TO THE ASSESSEE IS NOT AN EARNEST MONEY BUT TOWARDS THE COST OF PROJECT AS THE ASSESSEE HAS EXTINGUISHED HI S RIGHT OF 2/7 PORTION OF THE PROPERTY WITH REGARD TO TWO FLOORS ALLOTTED TO THE BUILDER I.E. GCB. THE GCB ALSO APPLIED FOR OCCUPATION CERTIFICATE FROM BMC AN D ALSO FILED DOCUMENTS FOR COMPLETION CERTIFICATE AS MENTIONED IN THE AO REMAN D REPORT FROM BMC SUCH AS STABILITY CERTIFICATE, SITE SUPERVISION COMPLET ION CERTIFICATE, RCC PLAN AND BUILDING PLAN WITH THE BMC FOR GETTING AN OCCUPATIO N CERTIFICATE. THE TDR AGREEMENT DATED 31.01.2005 WITH M/S REHAB HOUSING P RIVATE LIMITED FOR ACQUIRING 850 METERS PURCHASED BY THE GCB IN THE NA ME OF THE ASSESSEE , MR. D H DAVE AND FINAL AGREEMENT FOR TRANSFER / UTILIZA TION OF FSI BETWEEN REHAB HOUSING PRIVATE LIMITED AND MR. D H DAVE. THESE EVI DENCES SHOWS THAT THE ASSESSEE HAS HANDED OVER THE PEACEFUL POSSESSION OF THE AFORE-STATED LAND BEING BUNGALOW NO. 35 TO THE GCB TO CONSTRUCT 7 STO RIED BUILDING AND HAND OVER 5 FLATS TO THE ASSESSEE AS FREE OF COST AS PER THE MOU DATED 29-12-2004. THUS , THE CIT(A) HELD THAT THE TRANSFER IS COMPLET E AND THE AO HAS RIGHTLY BROUGHT TO TAX INCOME FROM TRANSFER OF PROPERTY AS CAPITAL GAINS , KEEPING IN VIEW THE PROVISIONS OF SECTION 2(47) OF THE ACT AND SECTION 53A OF THE TRANSFER OF PROPERTY ACT,1882. THUS , THE ASSESSMENT ORDER D ATED 31.12.2010 OF THE ASSESSING OFFICER PASSED U/S 143(3) OF THE ACT WAS UPHELD BY THE CIT(A) VIDE DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 15 ORDERS DATED 10.12.2012. THE CIT(A) DIRECTED THE AO TO INTIMATE THE CONCERNED AO HAVING JURISDICTION OVER THE OTHER CO-OWNERS OF THE PROPERTY FOR CONSIDERING LONG TERM CAPITAL GAIN ON SUBSTANTIVE BASIS IN THEI R CASES. 9. AGGRIEVED BY THE ORDERS DATED 10.12.2012 PASSED BY THE CIT(A), THE ASSESSEE HAS FILED AN APPEAL BEFORE THE TRIBUNAL. 10. LEARNED COUNSEL APPEARING FOR THE ASSESSEE REIT ERATED THE SUBMISSIONS AS WERE MADE BEFORE THE AUTHORITIES BELOW, WHICH AR E NOT REPEATED FOR THE SAKE OF BREVITY. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE ALONG WITH OTHER CO-OWNERS HAS ENTERED INTO AN MOU DATED 29.12 .2004 WITH GCB FOR DEVELOPMENT OF LAND FOR CONSTRUCTION OF SEVEN STORE Y RESIDENTIAL BUILDING AT 35, VALLABH NAGAR CO-OP HOUSING SOCIETY LTD., NORTH SOU TH ROAD NO. 3, J.V.P.D SCHEME, VILE PARLE(W), MUMBAI-400 56. IT WAS CONTENDED THAT THE INCOME IS TO BE ASSESSED IN THE HAND OF AOP/BOI AND NOT INDIVIDUALS. THE SAID MOU IS PLACED IN THE PAPER BOOK FILED BY THE A SSESSEE WITH THE TRIBUNAL AT PAGE 94 TO 102. THE COPIES OF THE ORIGINAL PURCHASE DEED DATED 21.09.1971 IN FAVOUR OF THE ASSESSEE AND MR.HARIVALLABH P. DAVE F OR PURCHASE OF LAND BEING PLOT NO.35, VALLABH NAGAR CO-OP HOUSING SOCIETY LTD ., NORTH SOUTH ROAD NO. 3, J.V.P.D SCHEME, VILE PARLE(W), MUMBAI-4 00 56 IS FILED IN THE PAPER BOOK , PAGE 001-018. IT IS STATED THAT TH E BUNGALOW WAS CONSTRUCTED IN THE YEAR 1972. THE SAID EXISTING BUNGALOW WAS TO BE DEMOLISHED BY THE GCB FOR CONSTRUCTING THE SEVEN STORIED RESIDENTIAL BUIL DING ON THE SAID PLOT AS PER TERMS OF THE MOU DATED 29.12.2004. THE PROCEEDS OF THE DEBRIS ON DEMOLITION THEREOF SHALL BELONG TO THE ASSESSEE AND THE OTHER CO-OWNERS , SIMILARLY COST OF DEMOLITION SHALL BE BORNE BY THE ASSESSEE AND THE O THER CO-OWNERS AS PER TERMS OF THE MOU DATED 29.12.2004. THE DOCUMENTS IN CONNECTION WITH THE TRANSFER OF SHARE CERTIFICATE SHOWING REGISTRATION OF CHANGE OF OWNERSHIP OF THE PROPERTY W.E.F. 12.09.1989 IN FAVOUR OF INCOMING NE W MEMBERS SH RAJIV D. DAVE, SH. ALOK D. DAVE AND MS. ANSUYA H DAVE ON INH ERITANCE AS PER ORAL WILL OF MR.HARIVALLABH P. DAVE, PURSUANT TO THE DEATH OF MR.HARIVALLABH P. DAVE ON DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 16 11.11.1985 IS PLACED IN PAPER BOOK PAGE 019-21. THE ASSESSEE CONTINUES TO BE OWNER IN THE RECORD OF THE SOCIETY. THE COPY OF NOC DATED 19/12/2003 FROM THE SOCIETY IN FAVOUR OF THE ASSESSEE, SH RAJIV D. DAVE, SH. ALOK D. DAVE AND MS. ANSUYA H DAVE FOR DEVELOPMENT OF PROPERTY IS PL ACED IN THE PAPER BOOK PAGE NO 021. LEARNED COUNSEL FOR THE ASSESSEE SUBMI TTED THAT RS. 1.65 CRORES WAS RECEIVED FROM GCB BY THE ASSESSEE AND THE CO-OW NERS SPREAD OVER FOUR YEARS STARTING FROM THE FINANCIAL YEAR 2004-05. FIR ST PAYMENT BEING RS. 5 LACS WAS RECEIVED IN THE ASSESSMENT YEAR 2005-06, RS.25 LACS WAS RECEIVED IN ASSESSMENT YEAR 2006-07, RS.70 LACS WAS RECEIVED IN ASSESSMENT YEAR 2007-08 AND THE BALANCE FINAL PAYMENT OF RS.65 LACS WERE RE CEIVED IN THE ASSESSMENT YEAR 2008-09. THE LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE POSSESSION OF THE SAID PROPERTY WAS ALWAYS WITH THE ASSESSEE A LONG WITH OTHER CO-OWNERS AND ONLY FOR THE LIMITED PURPOSES OF DEMOLITION OF THE BUNGALOW AND RECONSTRUCTION OF THE BUILDING , THE PROPERTY WAS H ANDED OVER TO THE GCB, WHICH IS EVIDENCED FROM THE TERMS OF MOU DATED 29.1 2.2004 WHICH IS PLACED IN THE PAPER BOOK FILED WITH THE TRIBUNAL AT PAGES NO. 94 TO 102. HE ALSO DREW OUR ATTENTION TO THE VARIOUS DEFECTS AND DISCREPANC IES IN THE PERFORMANCE OF THE GCB WITH RESPECT TO TERMS AND CONDITIONS AS STI PULATED IN THE MOU WHICH WERE COMMUNICATED TO THE GCB IN WRITING BEFORE TERM INATING THE MOU ON 15- 10-2007, WHEREBY THE CONSTRUCTION OF THE PROJECT S UFFERED AS TO THE QUALITY AND ALSO WITH RESPECT TO DELAY IN TERMS OF TIME IN COMPLETING THE WORK OF CONSTRUCTION OF THE BUILDING, THE CORRESPONDENCE WI TH THE GCB INFORMING DISCREPANCIES AND DEFICIENCIES IN PERFORMANCE IN TE RMS OF THE MOU IS PLACED IN PAPER BOOK PAGES 69-75. VARIOUS NOTICES IN WRITING WERE ISSUED BY THE ASSESSEE TO THE GCB REQUESTING TO COMPLY WITH THE T ERMS OF THE MOU BUT THE GCB DID NOT COMPLY AND ULTIMATELY THE MOU WAS TERMI NATED AS PER CLAUSE 11 OF THE MOU VIDE LETTER DATED 15.10.2007 AND THE POS SESSION OF THE PROPERTY GIVEN TO GCB FOR LIMITED PURPOSES OF DEMOLITION OF EXISTING STRUCTURE AND CONSTRUCTION OF SEVEN STORIES ON THE SAID LAND WAS RE-POSSESSED BY THE ASSESSEE ALONG WITH OTHER CO-OWNERS FROM SAID GCB. THE CONSTRUCTION OF SEVEN DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 17 STOREYS OF THE BUILDING WERE NOT COMPLETE WHEN THE MOU WAS TERMINATED ON 15.10.2007 AND THE PROPERTY BEING RE-POSSESSED BY T HE ASSESSEE AND THE CO- OWNERS (PAGE 75 OF PAPER BOOK) AND THE MATTER IS SU B-JUDICE WITH THE HONBLE BOMBAY HIGH COURTS WHO IS SEIZED OF THE MATTER AND THE DETAILS OF SUIT NO 189 OF 2008 PENDING WITH HONBLE BOMBAY HIGH COURT IS P LACED IN THE PAPER BOOK PAGE 22-54. THE ASSESSEE SUBMITTED THAT THE TWO FLO ORS BEING 4 TH AND 5 TH FLOOR CONSTRUCTED BY THE GCB WAS TO BE GIVEN TO THE GCB P ROVIDED IT STRICTLY COMPLIED WITH ALL THE TERMS AND CONDITION OF THE MO U AND NO ENCUMBRANCE OF 4 TH AND 5 TH FLOOR WHATSOEVER WAS CREATED IN FAVOUR OF THE GCB BY THE ASSESSEE AND THE CO-OWNERS. THE ASSESSEE SUBMITTED THAT THE POSSESSION OF THE ENTIRE PROPERTY IS STILL WITH THE ASSESSEE AND THE CO-OWNE RS , ALTHOUGH UNDERTAKING HAS BEEN GIVEN BEFORE THE HONBLE SUPREME COURT NOT TO ALIENATE THE PROPERTY. HE DREW OUR ATTENTION TO THE MOU DATED 29.12.2004 W HICH IS PLACED AT PAGES NO. 94 TO 102. THE ASSESSEE PLACED ON RECORD ORDERS OF THE HONBLE BOMBAY HIGH COURT WHERE BY THE COMMISSIONER WAS APPOINTED BY THE ORDERS OF THE HONBLE BOMBAY HIGH COURT TO VISIT THE AFORE-STATED PROPERTY(PAPER BOOK PAGE 25) . THE COMMISSIONER REPORT DATED 31/01/2008 (PAP ER BOOK PAGE 23-24) WHEREBY THE COURT APPOINTED COMMISSIONER HAS REPORT ED THAT THE DAVE FAMILY HAD THE KEYS OF THE FLATS AND OPENED THE FLATS IN T HE PRESENCE OF THE COURT APPOINTED COMMISSIONER AND THE REPRESENTATIVE OF GC B . THE PHOTOGRAPHS DURING THE COURT APPOINTED COMMISSIONER VISIT ARE P LACED AT PAGE 26-30. IT IS STATED BY THE ASSESSEE THAT THEY HAVE TO INCUR HUGE AMOUNT TO COMPLETE THE CONSTRUCTION AFTER TERMINATION OF THE MOU AND RE-PO SSESSING OF THE PROPERTY FROM GCB . THE ASSESSEE ALSO PLACED ON RECORD THE M UNICIPAL TAXES RECEIPT OF FEBRUARY 2014 AND ELECTRICITY BILLS WHICH ARE IN TH E NAME OF DAVES TO CONTEND THAT THE DAVE FAMILY IS THE OWNER OF THE SAID PROPE RTY SEIZED OF POSSESSION ALSO EVEN AS OF THE YEAR 2014. THE HON'BLE SUPREME COUR T VIDE ITS ORDERS DATED 22- 3-2010 IN SLP TO APPEAL (CIVIL) NO(S). 7354/2010 H AVE DISPOSED OFF THE SLP AS UNDER : DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 18 WE HAVE HEARD LEARNED COUNSEL FOR THE PARTIES. MR. MUKUL ROHTAGI , LEARNED SENIOR COUNSEL APPEARIN G FOR THE RESPONDENT GIVES AN UNDERTAKING THAT FLATS ON FOURTH AND FIFTH FLOORS AND THE CORRESPONDING PARKING SPACE SHALL NOT BE ALIENATED OR DEALT WITH IN ANY MANNER TILL THE DISPOSAL OF THE SUIT. WE REQUEST TH E LEARNED JUDGE TO DISPOSE OF THE SUIT AS EXPEDITIOUSLY AS POSSIBLE IN ANY EVENT WITH A WITHIN ONE YEAR. IN VIEW OF THIS ORDER, NOTHING SURVIVES IN THIS APP EAL OF THE DIVISION BENCH AND THE SAME IS DISPOSED OF. THE SPECIAL LEAVE PETITION IS, ACCORDINGLY DISPOSE D OF. THE COPY OF HONBLE SUPREME COURT ABOVE ORDERS ARE PLACED IN PAPER BOOK PAGE 76-78. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED WITHOUT PREJUDICE THAT THE MOU WAS ENTERED INTO IN THE ASSESSMENT YEAR 2005-06 AND IF IT IS TO BE CONSIDERED THAT THE POSSESSION IS GIVEN BY THE ASSESSEE, THEN WITHOUT PREJUDICE THE SAME WAS GIVEN ON 16-10-2005 BY SH. D. H. DAVE I.E. IN THE ASSESSMENT YEAR 2006- 07 AND NOT IN THE INSTANT ASSESSMENT YEAR 2008-09 U NDER APPEAL, THEN THE INCOME BEING LONG TERM CAPITAL GAIN ON THE TRANSFER OF THE AFORE-STATED PROPERTY CAN ONLY BE BROUGHT TO TAX FOR THE ASSESSMENT YEAR 2006-07 KEEPING IN VIEW THE PROVISIONS OF SECTION 2(47) OF THE ACT READ WIT H SECTION 53A OF THE TRANSFER OF PROPERTY ACT, 1882 AND NOT FOR THE INSTANT ASSES SMENT YEAR UNDER APPEAL I.E. 2008-09. HE ALSO DREW OUR ATTENTION TO VARIOUS INQ UIRIES MADE BY THE ASSESSING OFFICER U/S. 133(6) OF THE ACT WITH THE T ENANTS OF THE FLATS IN THE SAID BUILDING WHICH IS PLACED IN PAGE NO. 67 TO 100 OF T HE PAPER BOOK-II TO VERIFY DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 19 THE POSSESSION OF THE AFORE-STATED PROPERTY. THE AS SESSEE ALSO RELIED UPON NUMBER OF CASE LAWS AS PER CASE LAW PAPER BOOK FILE D WITH THE TRIBUNAL. 11. ON THE OTHER HAND LEARNED DEPARTMENTAL REPRESEN TATIVE SUBMITTED THAT THE OCCUPATION CERTIFICATE AND COMPLETION CERTIFICA TE WERE APPLIED BY THE GCB WITH BMC DURING THE IMPUGNED ASSESSMENT YEAR I.E. 2 008-09 WHICH IS EVIDENT FROM PAGE 14 PARA 2.3 OF THE CIT(A) ORDERS. HE RELI ED UPON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT IN THE AUDITED BOOKS OF ACCOUNT OF GCB , AN AMOUNT OF RS. 1.65 CRORES WAS REFLECTED AS COST OF PROJECT AND THE ASSESSEE HAS ALSO HANDED OVER THE POSSESSION TO THE SAID GCB . TRANSFER IS COMPLETE AS FAR AS SECTION 2(47) OF THE ACT READ WITH SECTION 5 3A OF THE TRANSFER OF PROPERTY ACT,1882 IS CONCERNED, INCOME IS CHARGEABLE TO TAX AS CAPITAL GAIN AS THE POSSESSION HAS BEEN HANDED OVER TO THE BUILDER IN P ART PERFORMANCE OF THE CONTRACT AND THE SAID BUILDER HAS ALREADY CONSTRUCT ED THE BUILDING AND HAS MADE PAYMENT OF RS. 1.65 CRORES TO THE ASSESSEE AS PER TERMS OF THE MOU, WHICH PAYMENT OF RS1.65 CRORES WERE COMPLETED DURIN G THE IMPUGNED ASSESSMENT YEAR AND THE OCCUPATION CERTIFICATION WE RE ALSO APPLIED IN THE IMPUGNED ASSESSMENT YEAR AND HENCE THE SAME WAS RIG HTLY BROUGHT TO TAX BY THE AUTHORITIES BELOW IN THE IMPUGNED ASSESSMENT YE AR 2008-09. 12. IN THE REJOINDER, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT AS PER SECTION 2(47) OF ACT, TRANSFER IS COMPLETE, IF THE POSSESSION IS GIVEN IN PART PERFORMANCE OF THE CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER OF PROPERTY ACT,1882. IT WAS SUBMITTED THA T THERE IS AN AMENDMENT IN SECTION 17 OF THE REGISTRATION ACT , 1908 IN THE YE AR 2001 BY AMENDMENT ACT OF 2001 WHICH STOOD ENFORCED W.E.F. 24.9.2001, BY WHIC H ONLY THOSE CONTRACTS WHICH ARE REGISTERED WILL ONLY BE CONSIDERED AS COV ERED U/S. 53A OF THE TRANSFER OF PROPERTY ACT,1882. SINCE, THE MOU DATED 29.12.2004 IS NOT REGISTERED, THE TRANSFER AS CONTEMPLATED U/S. 53A O F THE TRANSFER OF PROPERTY ACT,1882 IS NOT COMPLETE HE RELIED UPON THE JUDGMEN T OF HON'BLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF C.S. ATWAL AND OT HERS V. CIT [(2015) 59 DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 20 TAXMAN.COM 359(P&H HC)] AND SUBMITTED THAT NO CAPIT AL GAINS CAN BE BROUGHT TO TAX IN THIS CASE. 13. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL ON RECORD INCLUDING CASE LAWS RELIED UPON BY BOTH THE PARTIES. WE HAVE OBSERVED THAT THE ASSESSEE ALONGWITH SHRI HARIVALLABH PARMAN AND DAVE WAS THE OWNER OF THE IMPUGNED BUNGALOW AT PLOT NO.35, VALLABH NAGAR CO-OP HOUSING SOCIETY LTD., NORTH SOUTH ROAD NO. 3, J.V.P.D SCHEM E, VILE PARLE(W), MUMBAI-400 56 . THE SAID PLOT WAS PURCHASED BY THE ASSESSEE AND S H. HARIVALLABH PARMANAND DAVE (FATHER OF THE ASSESSEE ) IN THE YEAR 1971 AND THE BUNGALOW WAS STATED TO BE CONSTRUCTED IN THE YEAR 1 972. THE COPIES OF THE ORIGINAL PURCHASE DEED DATED 21.09.1971 IN FAVOUR O F THE ASSESSEE AND MR.HARIVALLABH P. DAVE FOR PURCHASE OF LAND BEING PLOT NO.35, VALLABH NAGAR CO-OP HOUSING SOCIETY LTD., NORTH SOUTH ROAD NO. 3, J.V.P.D SCHEME, VILE PARLE(W), MUMBAI-400 56 IS FILED IN THE PAPER BOOK , PAGE 001-018. THE SAID SH. HARIVALLABH PARMANAND DAVE DI ED ON 11.11.1985 AND HIS DAUGHTER AND TWO GRANDSONS ARE STATED TO HAVE A CQUIRED THE OWNERSHIP RIGHTS IN THE AFORE-STATED PROPERTY BY INHERITANCE AS PER ORAL WILL OF THE SAID SH. HARIVALLABH PARMANAND DAVE. SO , THE ASSESSEE(5 0%) AND MS. ANSUYA H. DAVE (16 1/3%) , SHRI RAJIV D. DAVE(16 1/3%) AND S HRI ALOK D. DAVE (16 1/3%) ARE STATED TO BE THE CO-OWNERS OF THE AFORE- STATED PROPERTY AND THE SHARES BEING DEFINITE AND ASCERTAINABLE IN RESPECT OF EACH PERSON , ARE DULY ENTERED INTO THE RECORDS OF THE SOCIETY AS PER THE FACTS EMERGING FROM THE RECORDS . SECTION 26 OF THE ACT PROVIDES THAT IN CA SE THE PROPERTY IS OWNED BY TWO OR MORE CO-OWNERS AND THEIR RESPECTIVE SHARES A RE DEFINITE AND ASCERTAINABLE , THEN INCOME FROM HOUSE PROPERTY HAS TO BE ASSESSED IN THE HANDS OF THE CO-OWNERS AND PERSON SHALL NOT BE ASSE SSED AS AN ASSOCIATION OF PERSONS (AOP). THUS, KEEPING IN VIEW OF THE FACTUAL MATRIX OF THE CASE WHEREBY THE SOCIETY HAS ADMITTED THE THREE CO-OWNERS AFTER THE DEATH OF THE SHRI HARIVALLABH PARMANAND DAVE AS LEGAL HEIRS WHO HAVE BECOME THE CO-OWNERS BY VIRTUE OF INHERITANCE AS PER ORAL WILL OF SAID SH. HARIVALLABH PARMANAND DAVE DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 21 AND THE ASSESSEE BEING 50% OWNER OF THE SAID PROPER TY BY VIRTUE OF ORIGINAL PURCHASE OF LAND AND CONSTRUCTION THEREOF THE SAID BUNGALOW , WE HOLD , THAT THE INCOME BEING CAPITAL GAINS ARISING ON TRANSFER OF THE AFORE-STATED PROPERTY WHICH IS CO-OWNED BY THE FOUR CO-OWNERS NAMELY THE ASSESSEE, MS ANSUYA H DAVE, RAJIV D DAVE AND SH. ALOK D DAVE SHALL BE BRO UGHT TO TAX IN THE HANDS OF THE CO-OWNERS RESPECTIVELY, AND NOT AS INCOME OF THE AOP/BOI AS CONTENDED BY THE ASSESSEE AS THERE IS NO ASSOCIATION OF PERSO N OR BODY OF INDIVIDUAL FORMED ON DEATH OF HARIVALLABH PARMANAND DAVE RATHE R THE PROPERTY IS CO- OWNED BY THE FAMILY MEMBERS OF THE ASSESSEE AND HEN CE THIS CONTENTION OF THE ASSESSEE IS REJECTED. WE HAVE ALSO OBSERVED THAT THE ASSESSEE ALONG WITH OTHER CO-OWNERS HAS ENTERED INTO AN MOU DATED 29.12.2004 WITH GCB FOR R EDEVELOPMENT OF THIS PROPERTY BY CONSTRUCTING SEVEN STORIES OF RESIDENTI AL BUILDING ON THE AFORE- STATED PROPERTY. THE SAID EXISTING BUNGALOW WAS TO BE DEMOLISHED BY THE GCB FOR CONSTRUCTING THE SEVEN STORIED RESIDENTIAL BUIL DING ON THE SAID PLOT. THE PROCEEDS THEREOF OF DEBRIS SHALL BELONG TO THE ASSE SSEE AND THE OTHER CO- OWNERS, SIMILARLY COST OF DEMOLITION SHALL BE BORNE BY THE ASSESSEE AND THE OTHER CO-OWNERS. IN CONSIDERATION OF THE GCB CONSTR UCTING SEVEN STOREYS OF RESIDENTIAL BUILDING ON THIS PROPERTY AND PAYMENT O F RS.1.65 CRORES TO BE MADE BY THE GCB TO THE ASSESSEE AND THE CO-OWNERS, THE G CB SHALL BE ENTITLED FOR TWO FLOORS NAMELY 4 TH AND 5 TH FLOOR ALONG WITH CORRESPONDING PARKING SPACE IN THE STILT AS EARMARKED IN THE PLAN ATTACHED. WE HAV E CAREFULLY PERUSED THE TERMS OF THE AFORE-STATED MOU DATED 29.12.2004. THE SAID MOU IS AN UNREGISTERED MOU. THE DOCUMENTS IN CONNECTION WITH THE TRANSFER OF SHARE CERTIFICATE SHOWING REGISTRATION OF CHANGE OF OWNER SHIP OF THE PROPERTY W.E.F. 12.09.1989 IN FAVOUR OF THE ASSESSEE, SH RAJIV D. D AVE, SH. ALOK D. DAVE AND MS. ANSUYA H DAVE , PURSUANT TO THE DEATH OF MR.HAR IVALLABH P. DAVE ON 11.11.1985 IS PLACED IN PAPER BOOK PAGE 019-21. THE COPY OF NOC DATED 19/12/2003 FROM THE SOCIETY IN FAVOUR OF THE ASSESS EE, SH RAJIV D. DAVE, SH. DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 22 ALOK D. DAVE AND MS. ANSUYA H DAVE FOR DEVELOPMENT OF PROPERTY IS PLACED IN THE PAPER BOOK PAGE NO 021. THE ASSESSEE AND THE OT HER CO-OWNERS ARE STATED TO HAVE RECEIVED RS. 1.65 CRORES FROM GCB SPREAD OV ER FOUR YEARS STARTING FROM THE FINANCIAL YEAR 2004-05. FIRST PAYMENT BEING RS. 5 LACS WAS STATED TO BE RECEIVED IN THE ASSESSMENT YEAR 2005-06, RS.25 LACS WAS STATED TO BE RECEIVED IN ASSESSMENT YEAR 2006-07, RS.70 LACS WAS STATED T O BE RECEIVED IN ASSESSMENT YEAR 2007-08 AND THE BALANCE FINAL PAYME NT OF RS.65 LACS WERE STATED TO BE RECEIVED IN THE ASSESSMENT YEAR 2008-0 9. IT IS CONTENDED THAT THE POSSESSION OF THE SAID PROPERTY WAS ALWAYS WITH THE ASSESSEE AND ONLY FOR THE LIMITED PURPOSE OF DEMOLITION OF THE BUNGALOW AND R ECONSTRUCTION OF THE BUILDING , THE PROPERTY WAS HANDED OVER TO THE GCB, WHICH IS STATED TO BE EVIDENCED FROM THE TERMS OF MOU DATED 29.12.2004 WH ICH IS PLACED IN THE PAPER BOOK FILED WITH THE TRIBUNAL AT PAGES NO. 94 TO 102. WE HAVE OBSERVED THAT THE PARTIES HAVE AGREED THAT POST SUCCESSFUL R ECONSTRUCTION, THE OWNERSHIP, CONTROL AND RIGHT OF PERPETUAL OCCUPATIO N OR ENJOYMENT AND RIGHT OF TRANSFERABILITY OF UNITS COMPRISED IN TWO FLOORS (V IZ. FOURTH AND FIFTH FLOORS) AND THE CORRESPONDING PARKING SPACE IN THE STILT AS EAR MARKED IN THE ATTACHED PLAN WILL BELONG TO THE GCB STRICTLY IN TERMS OF THE MOU . THE GCB WAS UNDER AN OBLIGATION TO RE-CONSTRUCT THE PROPERTY BY CONSTRUC TING SEVEN STOREYS OF RESIDENTIAL BUILDING AND SECURE BUILDING OCCUPATION /COMPLETION CERTIFICATE AND IT IS CLEARLY STATED IN CLAUSE 10 THAT THE GCB HAS TO FULFILL HIS ENTIRE OBLIGATIONS I.E. CONSTRUCTING SEVEN STORIES OF RESIDENTIAL BUIL DING AND ALSO PAYING THE ASSESSEE AND THE OTHER CO-OWNERS RS.1.65 CRORES AND TILL THE SUCCESSFUL COMPLIANCE OF ALL THE TERMS OF THE MOU, THE ASSESSE E AND THE OTHER CO-OWNERS WILL CONTINUE TO BE IN EXCLUSIVE POSSESSION OF THE PROPERTY. THE ACCESS OF THE GCB TO THE PROPERTY WAS AS LICENSEE ONLY FOR THE LI MITED PURPOSES OF DEMOLITION OF THE BUNGALOW AND CONSTRUCTION THEREON OF SEVEN S TORIES OF RESIDENTIAL BUILDING. IT IS ALSO STIPULATED IN CLAUSE 11 OF THE SAID MOU DATED 29.12.2004 THAT MATERIAL BREACH OF AGREEMENT ON THE PART OF TH E GCB WITHOUT THERE BEING ANY REASONABLE CAUSE WILL PERMIT THE ASSESSEE AND O THER CO-OWNERS TO DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 23 TERMINATE THE AGREEMENT IF THE BREACH IS NOT REMEDI ED WITHIN THREE MONTHS. IT IS ALSO STIPULATED IN THE MOU CLAUSE 12 THAT ONCE T HE BUILDING IS COMPLETED AND FULL PAYMENT HAS BEEN MADE BY THE GCB, THE GCB WILL TAKE POSSESSION OF FLATS ON FOURTH AND FIFTH FLOORS INCLUDING CORRESPO NDING RIGHT TO PARKING AS EARMARKED IN THE ATTACHED PLAN. ON PERUSAL OF VARIO US CLAUSES OF THE MOU BETWEEN THE GCB ON THE ONE HAND AND THE ASSESSEE & CO-OWNERS ON THE OTHER HAND , IT IS OBSERVED THAT ALLEGEDLY THE GCB HAS NO T FULFILLED ITS COMMITMENT WITH RESPECT TO THE PERFORMANCE OF THE MOU WHEREBY THERE WAS DISCREPANCY AND DEFICIENCIES IN THE CONSTRUCTION OF THE SEVEN S TORYED RESIDENTIAL BUILDING AS TO THE TIME IN COMPLETION OF THE CONSTRUCTION AS AL SO AS TO THE QUALITY OF THE CONSTRUCTION . THE SAID MOU WAS TERMINATED BY THE A SSESSEE AND THE CO- OWNERS ON 15.10.2007 AND THE MATTER IS SUB-JUDICE W ITH THE HONBLE BOMBAY HIGH COURT VIDE SUIT NO 189 OF 2008 FILED BY THE GC B WHEREBY THE ASSESSEE AND OTHER CO-OWNERS ARE DEFENDENTS. IT WAS CONTENDE D BEFORE US THAT VARIOUS DEFECTS AND DISCREPANCIES IN THE PERFORMANCE OF THE BUILDER WITH RESPECT TO TERMS AND CONDITIONS AS STIPULATED IN THE MOU WERE COMMUNICATED TO THE GCB BEFORE TERMINATING THE MOU ON 15-10-2007, WHER EBY THE CONSTRUCTION OF THE PROJECT SUFFERED AS TO THE QUALITY AND ALSO WIT H RESPECT TO DELAY IN TERMS OF TIME OF EXECUTION OF THE WORK, THE CORRESPONDENCE W ITH THE GCB IS PLACED IN PAPER BOOK PAGES 69-75. VARIOUS NOTICES WERE ISSUE D TO THE GCB REQUESTING TO COMPLY WITH THE TERMS OF THE MOU BUT THE SAID GCB D ID NOT COMPLY AND ULTIMATELY THE MOU WAS TERMINATED AS PER CLAUSE 11 OF THE MOU VIDE LETTER DATED 15.10.2007 AND THE POSSESSION OF THE PROPERTY GIVEN TO GCB FOR LIMITED PURPOSES OF DEMOLITION OF EXISTING STRUCTURE AND CO NSTRUCTION OF SEVEN STOREYS ON THE SAID LAND WAS RE-POSSESSED BY THE ASSESSEE F ROM SAID GCB. THE SAID DEFICIENCIES BY THE BUILDER IN THE COMPLIANCES AS P ER TERMS OF THE MOU WERE PLACED AT PAGE NO. 69 TO 75 OF THE PAPER BOOK. THE CONSTRUCTION OF SEVEN STORIES WERE NOT COMPLETE WHEN THE MOU WAS TERMINAT ED ON 15.10.2007 AND THE PROPERTY BEING RE-POSSESSED BY THE ASSESSEE .TH E AFORE-STATED MOU DATED 29.12.2004 HAS ALREADY BEEN CANCELLED AND TERMINATE D VIDE LETTER DATED DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 24 15.10.2007 (PAGE 75 OF PAPER BOOK) AND THE MATTER I S SUB-JUDICE WITH THE HONBLE BOMBAY HIGH COURT WHO ARE SEIZED OF THE MAT TER AND THE DETAILS OF SUIT PENDING WITH HONBLE BOMBAY HIGH COURT IS PLAC ED IN THE PAPER BOOK PAGE 22-54. THE ASSESSEE SUBMITTED THAT THE TWO FLOORS B EING 4 TH AND 5 TH FLOOR WAS TO BE GIVEN TO THE GCB PROVIDED IT STRICTLY COMPLIED W ITH ALL THE TERMS AND CONDITION OF THE MOU AND NO ENCUMBRANCE OF 4 TH AND 5 TH FLOOR WHATSOEVER WAS CREATED IN FAVOUR OF THE GCB BY THE ASSESSEE. IT WA S CONTENDED BEFORE US THAT THE POSSESSION OF THE ENTIRE PROPERTY IS STILL WITH THE ASSESSEE ALTHOUGH UNDERTAKING HAS BEEN GIVEN BEFORE THE HONBLE SUPRE ME COURT NOT TO ALIENATE THE PROPERTY. THE HONBLE BOMBAY HIGH COURT HAD AP POINTED COMMISSIONER TO VISIT THE AFORE-STATED PROPERTY(PAPER BOOK PAGE 25) . THE COMMISSIONER REPORT DATED 31/01/2008 (PAPER BOOK PAGE 23-24) WHEREBY TH E COURT APPOINTED COMMISSIONER HAS REPORTED THAT THE DAVE FAMILY HAD THE KEYS OF THE FLATS AND OPENED THE FLATS IN THE PRESENCE OF THE COURT APPOI NTED COMMISSIONER AND THE REPRESENTATIVE OF GCB . THE PHOTOGRAPHS DURING THE COURT APPOINTED COMMISSIONER VISIT ARE PLACED AT PAGE 26-30. THE RE PRESENTATIVE OF GCB ON THE OTHER HAND HAD HOWEVER CLAIMED THAT THEY HAD THE KE YS AND THE ASSESSEE HAS REMOVED THE LOCKS AND REPLACED THE SAME WITH THEIR OWN LOCKS WHICH IS STATED IN THE SAID COMMISSIONER REPORT DATED 31/01/2008. T HE HONBLE BOMBAY HIGH COURT IN ITS ORDER DATED 17-08-2009 IN SUIT NO. 189 OF 2008 HAS RECORDED THE CONTENTIONS OF GCB THAT 90% OF THE WORK WAS COMPLET E WHEN THE ASSESSEE ALONG WITH OTHER CO-OWNERS TERMINATED THE MOU AND T HE DELAYS WERE DUE TO THE ASSESSEE NON-CO-OPERATION . IT IS STATED BY THE ASSESSEE THAT THEY HAVE TO INCUR HUGE AMOUNT TO COMPLETE THE CONSTRUCTION AFTE R TERMINATION OF THE MOU WITH GCB. IT WAS ALSO CONTENDED THAT OCCUPATION CER TIFICATE WAS ALSO OBTAINED BY THE ASSESSEE AND THE CO-OWNERS DIRECTLY FROM BMC THE ASSESSEE ALSO PLACED ON RECORD THE MUNICIPAL TAXES RECEIPT OF FEBRUARY 2 014 AND ELECTRICITY BILLS WHICH ARE IN THE NAME OF DAVES TO CONTEND THAT THE DAVE FAMILY IS THE OWNER OF THE SAID PROPERTY SEIZED OF POSSESSION ALSO EVEN AS OF 2014. THE HON'BLE DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 25 SUPREME COURT VIDE ITS ORDERS DATED 22-3-2010 IN SL P TO APPEAL (CIVIL) NO(S). 7354/2010 HAVE DISPOSED OFF THE SLP AS UNDER : WE HAVE HEARD LEARNED COUNSEL FOR THE PARTIES. MR. MUKUL ROHTAGI , LEARNED SENIOR COUNSEL APPEARIN G FOR THE RESPONDENT GIVES AN UNDERTAKING THAT FLATS ON FOURTH AD FIFTH FLOORS AND THE CORRESPONDING PARKING SPACE SHALL NOT BE ALIENATED OR DEALT WITH IN ANY MANNER TILL THE DISPOSAL OF THE SUIT. WE REQUEST TH E LEARNED JUDGE TO DISPOSE OF THE SUIT AS EXPEDITIOUSLY AS POSSIBLE IN ANY EVENT WITH A WITHIN ONE YEAR. IN VIEW OF THIS ORDER, NOTHING SURVIVES IN THIS APP EAL OF THE DIVISION BENCH AND THE SAME IS DISPOSED OF. THE SPECIAL LEAVE PETITION IS, ACCORDINGLY DISPOSE D OF. THE COPY OF HONBLE SUPREME COURT ABOVE ORDERS ARE PLACED IN PAPER BOOK PAGE 76-78. WE HAVE ALSO OBSERVED THAT THE ASSESSING OFFICER HA S MADE ENQUIRIES U/S. 133(6) OF THE ACT WITH THE TENANTS OF THE FLATS IN THE SAID BUILDING WHICH IS PLACED IN PAGE NO. 67 TO 100 OF THE PAPER BOOK-II W ITH RESPECT TO VERIFYING THE POSSESSION OF THE PROPERTY. WE HAVE ALSO OBSERVED THAT THERE HAS BEEN AN AMENDM ENT IN SECTION 17 OF THE REGISTRATION ACT,1908 WHEREBY SECTION 17A WAS INTRO DUCED AND ADDED TO THE STATUTE W.E.F. 24.9.2001 BY THE REGISTRATION AND OT HER RELATED LAWS (AMENDMENT) ACT, 2001, WHEREBY IT IS CLEARLY STIPUL ATED THAT A CONTRACT TO BE A VALID CONTRACT UNDER SECTION 53A OF THE TRANSFER OF THE PROPERTY ACT, 1882, IT DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 26 HAS TO BE AGREEMENT IN WRITING WHICH IS TO BE AN RE GISTERED AGREEMENT AND OTHERWISE THE SAME SHALL HAVE NO EFFECT FOR THE PUR POSES OF THE SAID SECTION 53A OF THE TRANSFER OF PROPERTY ACT,1882 . THE SAID SECTION 17(1A) OF THE REGISTRATION ACT , 1908 AS ADDED AND INTRODUCED TO THE STATUTE W.E.F. 24.9.2001 BY THE REGISTRATION AND OTHER RELATED LAW S (AMENDMENT) ACT, 2001 IS REPRODUCED HEREUNDER: [ (1A) THE DOCUMENTS CONTAINING CONTRACTS TO TRANSFER FOR CONSIDERATION, ANY IMMOVABLE PROPERTY FOR THE PURPOSE OF SECTION 5 3A OF THE TRANSFER OF PROPERTY ACT, 1882 (4 OF 1882) SHALL BE REGISTERED IF THEY HAVE BEEN EXECUTED ON OR AFTER THE COMMENCEMENT OF THE REGIST RATION AND OTHER RELATED LAWS (AMENDMENT) ACT, 2001 AND IF SUCH DOCU MENTS ARE NOT REGISTERED ON OR AFTER SUCH COMMENCEMENT, THEN, THE Y SHALL HAVE NO EFFECT FOR THE PURPOSES OF THE SAID SECTION 53A.] AS PER SECTION 49 OF THE REGISTRATION ACT,1908 , IN THE ABSENCE OF REGISTERED AGREEMENT AS CONTEMPLATED U/S 17 OF THE ACT OF 1908 , THE SAME SHALL NOT AFFECT ANY IMMOVABLE PROPERTY COMPRISED THERE-IN OR CONFER ANY POWER TO ADOPT OR BE RECEIVED IN EVIDENCE OF ANY TRANSACTION AFFECTING S UCH PROPERTY OR CONFERRING SUCH POWER. THE SAID SECTION 49 OF THE REGISTRATIO N ACT,1908 IS REPRODUCED HEREUNDER : 49. EFFECT OF NON-REGISTRATION OF DOCUMENTS REQUIR ED TO BE REGISTERED.NO DOCUMENT REQUIRED BY SECTION 17 [OR BY ANY PROVISIO N OF THE TRANSFER OF PROPERTY ACT, 1882 (4 OF 1882)], TO BE REGISTERED S HALL (A) AFFECT ANY IMMOVABLE PROPERTY COMPRISED THEREIN, O R (B) CONFER ANY POWER TO ADOPT, OR DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 27 (C) BE RECEIVED AS EVIDENCE OF ANY TRANSACTION AFFECTI NG SUCH PROPERTY OR CONFERRING SUCH POWER, UNLESS IT HAS BEEN REGISTERE D: [PROVIDED THAT AN UNREGISTERED DOCUMENT AFFECTING IMMOVABLE PROPERTY AND REQUIRED BY THIS ACT OR THE TRANSFER OF PROPERT Y ACT, 1882 (4 OF 1882), TO BE REGISTERED MAY BE RECEIVED AS EVIDENCE OF A C ONTRACT IN A SUIT FOR SPECIFIC PERFORMANCE UNDER CHAPTER II OF THE SPECIF IC RELIEF ACT, 1877 (3 OF 1877) [***] OR AS EVIDENCE OF ANY COLLATERAL TRANSACTION NOT REQUIRED TO BE EFFECTED BY REGISTERED INSTRUMENT.] SECTION 53A OF THE TRANSFER OF THE PROPERTY ACT,188 2 PROVIDES AS UNDER: SECTION 53A IN THE TRANSFER OF PROPERTY ACT, 1882 [53A. PART PERFORMANCE.WHERE ANY PERSON CONTRACTS TO TRANSFER FOR CONSIDERATION ANY IMMOVEABLE PROPERTY BY WRITING SI GNED BY HIM OR ON HIS BEHALF FROM WHICH THE TERMS NECESSARY TO CONSTITUTE THE TRANSFER CAN BE ASCERTAINED WITH REASONABLE CERTAINTY, AND THE TRAN SFEREE HAS, IN PART PERFORMANCE OF THE CONTRACT, TAKEN POSSESSION OF TH E PROPERTY OR ANY PART THEREOF, OR THE TRANSFEREE, BEING ALREADY IN POSSES SION, CONTINUES IN POSSESSION IN PART PERFORMANCE OF THE CONTRACT AND HAS DONE SOME ACT IN FURTHERANCE OF THE CONTRACT, AND THE TRANSFEREE HAS PERFORMED OR IS WILLING TO PERFORM HIS PART OF THE CONTRACT, THEN, NOTWITHS TANDING THAT [***] WHERE THERE IS AN INSTRUMENT OF TRANSFER, THAT THE TRANSF ER HAS NOT BEEN COMPLETED IN THE MANNER PRESCRIBED THEREFOR BY THE LAW FOR THE TIME BEING IN FORCE, THE TRANSFEROR OR ANY PERSON CLAIMING UND ER HIM SHALL BE DEBARRED FROM ENFORCING AGAINST THE TRANSFEREE AND PERSONS CLAIMING UNDER HIM ANY RIGHT IN RESPECT OF THE PROPERTY OF W HICH THE TRANSFEREE HAS TAKEN OR CONTINUED IN POSSESSION, OTHER THAN A RIGH T EXPRESSLY PROVIDED BY THE TERMS OF THE CONTRACT: PROVIDED THAT NOTHING IN THIS SECTION SHALL AFFECT THE RIGHTS OF A TRANSFEREE FOR CONSIDERATION WHO HA S NO NOTICE OF THE CONTRACT OR OF THE PART PERFORMANCE THEREOF.] DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 28 SECTION 2(47) OF INCOME TAX ACT,1961 STIPULATES AS UNDER: ( 47 ) ['TRANSFER', IN RELATION TO A CAPITAL ASSET, INCLU DES, ****** ******* [( V ) ANY TRANSACTION INVOLVING THE ALLOWING OF THE POSSE SSION OF ANY IMMOVABLE PROPERTY TO BE TAKEN OR RETAINED IN PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERR ED TO IN SECTION 53A OF THE TRANSFER OF PROPERTY ACT, 1882 (4 OF 1882) ; OR ****** ****** [ EXPLANATION 1 ]. FOR THE PURPOSES OF SUB - CLAUSES ( V ) A ND ( VI ), 'IMMOVABLE PROPERTY' SHALL HAVE THE SAME MEANING AS IN CLAUSE ( D ) OF SECTION 269UA .] [ EXPLANATION 2. FOR THE REMOVAL OF DOUBTS, IT IS HEREBY CLARIFIED THAT 'TRANSFER' INCLUDES AND SHALL BE DEE MED TO HAVE ALWAYS INCLUDED DISPOSING OF OR PARTING WITH AN ASS ET OR ANY INTEREST THEREIN, OR CREATING ANY INTEREST IN ANY A SSET IN ANY MANNER WHATSOEVER, DIRECTLY OR INDIRECTLY, ABSOLUTELY OR CONDITIONALLY, VOLUNTARILY OR INVOLUNTARILY, BY WAY OF AN AGREEMEN T (WHETHER ENTERED INTO IN INDIA OR OUTSIDE INDIA) OR OTHERWIS E, NOTWITHSTANDING THAT SUCH TRANSFER OF RIGHTS HAS BEEN CHARACTERISED AS BEING EFFECTED OR DEPENDENT UPON OR FLOWING FROM THE TRANSFER OF A SHARE OR SHARES OF A COMPANY REGISTERED OR INCORPORATED OUTSIDE IN DIA;] DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 29 IN THIS INSTANT CASE , THE MOU DATED 29.12.2004 ENT ERED WITH GCB IS NOT REGISTERED AND HENCE IT DOES NOT CONVEY ANY TITLE O R OWNERSHIP RIGHTS U/S. 53A OF THE TRANSFER OF PROPERTY ACT,1882 IN RESPECT OF THE PROPERTY AS PER THE NEWLY INSERTED SECTION 17(1A) OF THE REGISTRATION ACT,190 8. THUS WITH REGARD TO THE TRANSFER OF THE PROPERTY IN THE INSTANT CASE AS PER FACTUAL MATRIX OF THE CASE AS SET OUT ABOVE, THERE IS NO VALID TRANSFER U/S. 53A OF THE TRANSFER OF PROPERTY ACT,1882 HAD TAKEN PLACE AS CONTEMPLATED U/S. 2(47) OF THE ACT AS THE MOU DATED 29.12.2004 IS AN UNREGISTERED DOCUMENT , NO TITLE HAS BEEN TRANSFERRED IN PART PERFORMANCE OF THE CONTRACT AS IT HAD NOT A FFECTED THE IMMOVABLE PROPERTY COMPRISED THERE-IN, HENCE CAPITAL GAIN CAN NOT BE BROUGHT TO TAX. THE SIMILAR VIEW HAS BEEN TAKEN IN THE CASE OF C.S. ATW AL (SUPRA) BY THE HONBLE PUNJAB AND HARYANA HIGH COURT. WE HAVE ALSO NOTICE D IN THE INSTANT CASE THAT POSSESSION IS HANDED OVER FOR THE LIMITED PURP OSE OF DEMOLITION AND RECONSTRUCTION OF THE PROPERTY FOR CONSTRUCTING SEV EN STOREYS OF RESIDENTIAL BUILDING ON THIS PROPERTY , AND IT IS NOT THAT THE ASSESSEE AND THE OTHER CO- OWNERS OF THE PROPERTY IN EXECUTION OF THE MOU HAVE HANDED OVER THE POSSESSION OF THE PROPERTY IN LIEU OF THE PART CONS IDERATION RECEIVED FROM GCB IN THE CAPACITY OF THE BUYER OF THE SAID PROPERTY, RATHER THE POSSESSION OF THE AFORE-STATED PROPERTY WAS HANDED OVER TO GCB AS LIC ENSEE ONLY FOR LIMITED PURPOSE OF DEMOLITION OF THE EXISTING BUNGALOW AND FOR RECONSTRUCTION OF THE SAID PROPERTY BY CONSTRUCTING SEVEN STOREYS RESIDE NTIAL BUILDING ON THE SAID PROPERTY. THE ASSESSEE AND THE CO-OWNERS CONTINUE T O ENJOY THE POSSESSION AS AND IN THE CAPACITY AS THE OWNERS OF THE AFORE-STAT ED PROPERTY WHILE CONCURRENT POSSESSION WAS WITH GCB AS LICENSEE FOR LIMITED PUR POSES OF DEMOLITION OF BUNGALOW AND FOR CONSTRUCTION OF SEVEN STORIES AND HENCE IN OUR CONSIDERED VIEW, INCOME THERE-OF CANNOT BE BROUGHT TO TAX IN T HE HANDS OF THE ASSESSEE AND THE CO-OWNER DURING THE IMPUGNED ASSESSMENT YEA R AS TRANSFER AS CONTEMPLATED U/S 2(47) OF THE ACT READ WITH SECTION 53A OF THE TRANSFER OF PROPERTY ACT ,1882 IS NOT BEEN EFFECTED AS THE POSS ESSION IN FACT WAS NEVER BEEN TRANSFERRED FROM THE ASSESSEE AND THE CO-OWNER S TO THE GCB IN ITS DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 30 CAPACITY AS BUYER OF THE FOURTH AND FIFTH FLOOR TO BE CONSTRUCTED IN LIEU OF CONSTRUCTING REST OF FIVE FLOORS FOR THE ASSESSEE AND THE OTHER CO-OWNERS AS ALSO ON PAYMENT OF RS.1.65 CRORES BY GCB TO THE ASS ESSEE AND OTHER CO-OWNERS AS PER FACTS AND CIRCUMSTANCES OF THE CASE AS SET O UT ABOVE. THE AGREEMENT HAS ALREADY BEEN TERMINATED BY THE ASSESSEE AND THE CO-OWNERS ON15.10.2007 FOR DEFICIENCY AND DISCREPANCIES IN PERFORMANCE BY GCB IN TERMS OF THE MOU DATED 29.12.2004 WITH RESPECT TO THE QUALITY OF CON STRUCTION AND TIME OF COMPLETION AND THE MATTER BEING SUB-JUDICE WHEREBY HONBLE BOMBAY HIGH COURT IS SEIZED OF THE SUIT NO. 189 OF 2008 FILED B Y GCB WITH RESPECT TO THE DISPUTE BETWEEN THE ASSESSEE AND CO-OWNERS ON THE O NE HAND AND THE GCB ON THE OTHER HAND. COMPLETE PERFORMANCE OF THE MOU HAS NOT ALLEGEDLY BEEN DONE BY THE BUILDER AS IT IS ALSO ON RECORD THAT ONLY 90 % OF THE WORK WAS CLAIMED TO HAVE BEEN FINISHED BY GCB AND NO CONVEYANCE DEED OR REGISTERED AGREEMENT FOR SALE HAS BEEN REGISTERED IN FAVOUR OF GCB BY TH E ASSESSEE AND THE OTHER CO- OWNERS. THE ADDITIONS MADE BY THE AO AND AS CONFIRM ED BY THE CIT(A) IN VIEW OF OUR ABOVE REASONING AND DISCUSSIONS AS SET OUT A BOVE ARE NOT SUSTAINABLE , THE SAME IS ORDERED TO BE DELETED. WE ORDER ACCORDI NGLY. 14. IN THE RESULT, APPEAL IN ITA NO 1038/MUM/2013 I S ALLOWED. ITA NO. 155 & 156/MUM/2015 15. OUR DECISION IN ITA NO. 1038/MUM/2013 ON MERITS SHALL APPLY IN THESE TWO APPEALS NAMELY ITA NO. 155 & 156/MUM/2015 MUTAT IS-MUTANDIS FILED BY THE ASSESSEE MR RAJIV D DAVE AND MS ANSUYA H DAVE R ESPECTIVELY. WITH RESPECT TO CHALLENGE TO THE REOPENING OF ASSE SSMENT BY ISSUANCE OF NOTICE U/S 148 OF THE ACT IN THESE TWO APPEALS, IT IS OBSE RVED THAT THE AO HAS RECEIVED FRESH AND TANGIBLE INCRIMINATING MATERIAL BEING INF ORMATION FROM THE AO OF DR DEVENDER H DAVE THAT THESE TWO RESPECTIVE ASSESSEE S HAVE NOT DISCLOSED THEIR SHARE OF LONG TERM CAPITAL GAIN ON TRANSFER OF THE AFORE-STATED PROPERTY WHICH DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 31 SHALL BE CONSIDERED FOR ADDITION ON SUBSTANTIVE BAS IS IN THEIR RESPECTIVE HANDS. THE AO RECORDED THE REASONS FOR RE-OPENING OF THE A SSESSMENT AND THE AO RE- OPENED THE ASSESSMENT U/S 147/148 OF THE ACT AND TH E AFORE-SAID NEW AND TANGIBLE MATERIAL COMING TO POSSESSION OF THE AO HA S IN OUR CONSIDERED VIEW DIRECT AND LIVE LINK/NEXUS WITH THE FORMATION OF BE LIEF THAT THE INCOME HAS ESCAPED ASSESSMENT AND THE RE-OPENING HAS BEEN DONE WITHIN FOUR YEARS FROM THE END OF THE ASSESSMENT YEAR. IN THE CASE OF MS A NSUYA H DAVE IN ITA NO. 156/MUM/2015 , EVEN THE SAID ASSESSEE DID NOT FILED ANY RETURN OF INCOME U/S 139 OF THE ACT ON THE GROUNDS THAT THE INCOME O F THE SAID ASSESSEE, MS ANSUYA H DAVE IS BELOW THE TAXABLE LIMIT OF THE INC OME WHICH IS NOT CHARGEABLE TO TAX AS PER THE ACT. THUS, WE UPHOLD T HE REOPENING OF THE ASSESSMENT U/S 147/148 OF THE ACT BY THE AO AS VALI D AND PROPER IN BOTH THESE APPEALS. THE CONTENTIONS OF BOTH THE RESPECTI VE ASSESSEES TO THIS EFFECT COVERED UNDER BOTH THESE APPEALS ARE HEREBY REJECTE D . WE ORDER ACCORDINGLY. 16. THUS, BOTH THE ABOVE APPEALS IN ITA NO. 155 & 1 56/MUM/2015 FILED BY THE RESPECTIVE ASSESSEES ARE PARTLY ALLOWED. 17. IN THE RESULT, APPEAL IN ITA NO 1038/MUM/2013 I S ALLOWED WHILE THE APPEALS IN ITA NO. 155 & 156/MUM/2015 FILED BY THE RESPECTIVE ASSESSEES ARE PARTLY ALLOWED. ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 2 ND MAY, 2016. SD/- SD/- (AMIT SHUKLA) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED : 02/05/2016 DR. DEVENDRA H. DAVE & OTHERS ITA NO. 1038/M/2013, 155/M/2015 & 156/M/2015 32 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) ITAT, MUMBAI PS